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Sunday, 16 August 2015

When accused should not be held guilty for possessing fake currency notes?

Now, coming to the Judgment of the Trial Court, the Trial Court has come to the conclusion so far as the intention, knowledge of the accused is concerned, on the basis of imagination. At paragraph 26 the learned Sessions Judge has observed that :

"If the accused was innocent and he was in possession of those fake notes without his knowledge, then to my mind it was obligatory on his part to explain his innocence in the matter. For the reasons best known to the accused, he has kept silent while he was examined under section 313 of Cr.P.C. and he has not given any iota of explanation. His silence during the time of his statement under Section 313 of Cr.P.C. is one of the strong circumstances against him".

The above said observation by the learned Sessions Judge, in my opinion, is not correct and proper. The innocence of the accused shall be initially presumed by the Courts. On the basis of the materials on record, if the Court comes to the conclusion that the innocence of the accused is successfully destroyed by the prosecution then only it becomes obligatory on the part of the accused to open his mouth and prove his innocence. In this particular case, I have already observed, the Sessions Judge himself has not narrated any evidence against him with reference to his knowledge or reasonable belief with regard to the conscious possession of counterfeit currency notes, then the question of the accused explaining any incriminating material against him does not arise.The further observation of the Sessions Judge that the accused due to day to day business might have come to know about the genuine currency notes and fake currency notes. There is long long way to travel between, the accused might have known or must have known, the Court should be very specific, on the basis of the evidence. Whatever observations made by the learned Sessions Judge above, in my opinion, are not based on any evidence on record. The Hon'ble Supreme Court in the above said one of the decisions has also observed that in day to day business, people may come across the fake currency notes and they may receive several fake notes in the course of their business, it cannot be held that the accused is guilty.

Karnataka High Court

Mahendrasingh Khetsing Rao vs The State Of Karnataka on 12 February, 2014

Author: K.N.Phaneendra

The State through Sub-Urban Police Station, Hubli submitted a charge sheet against the accused for the offence punishable under Section 489-B of I.P.C. The allegations against the accused are that on 22.02.2011 at about 12.30 p.m. the accused/appellant herein being in possession of 10 counterfeit currency notes of the denomination of Rs.500/- of the series 8MT 084858 he attempted to deposit the said 10 counterfeit currency notes by mixing with 6 genuine currency notes of the same denomination knowing fully well that the said fake currency notes of the said series of the denomination of Rs.500/- are counterfeit fake currency notes. He intended to deposit that account of his brother Sri. Bhagawan Singh S/o Khethsingh having Account No. 18072200070823 with Syndicate Bank, Sriramnagar Branch, Gangavathi for the purpose of wrongful gain and by doing such transaction he has committed an offence punishable under the above said provision. After securing the accused, the Court has framed charges against the accused for the above said offence and put the accused on trial.

2. The prosecution in order to prove the guilt of the accused examined as many as 11 witnesses PW-1 to PW-11 and got marked Ex.P1 to P14 and MOs 1 to 16. MOs 1 to 10 are the fake currency notes of denomination of Rs.500/- and MOs 11 to 16 are six genuine currency notes of denomination of Rs.500/-.

3. Learned Sessions Judge after appreciating the evidence of prime prosecution witnesses and also considering all the other relevant materials found the accused guilty and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.20,000/- with a default clause to undergo simple imprisonment for one year. The said order is called in question before this Court.

4. The learned Counsel for the appellant strenuously contends that though some materials have been placed by the prosecution to show that some currency notes were recovered at the instance of the accused, but there is no proof given by the prosecution to establish theingredients of Section 489-B of I.P.C. None of the witnesses have stated about the intention of the accused in producing the said fake currency notes, that, knowing fully well that those currency notes are fake currency notes and in order to have wrongful gain he intentionally produced those currency notes in the Bank. In the absence of proving the ingredients of Section 489-B of I.P.C. mere recovery of the fake currency notes from the custody of the accused does not come to the aid of the prosecution.

5. Per contra, the learned Additional State Public Prosecutor submitted that the possession of the currency notes itself presupposes the conduct of the accused and his knowledge about those currency notes. He specifically submitted that in this particular case all the fake currency notes are having common number. Therefore, any ordinary prudent man can definitely have the knowledge that those currency notes are not genuine notes and they are fake currency notes. Therefore, the accused need not be an expert to come to the conclusion that those currency notes are fake currency notes. Therefore, it is incumbent upon the accused to explain his innocence. Bearing in mind the above said submissions made by the learned Counsel, it is just and necessary for this Court to have the provision under Section 489-B to ascertain what exactly the prosecution has to establish before the Court of Law.

"489(B) Using as genuine, forged or
counterfeit currency-notes or bank-

notes.--Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

On plain reading of the above said provision of law, it is clear that in order to prove the ingredients of the offence under Section 489-B, the prosecution firstly has to establish that the said notes were found in possession of the accused. Secondly, the most important ingredient is regarding the knowledge and belief of the accused in respect of such currency notes. The burden of establishing this fact is squarely on the prosecution. Unless the prosecution establishes that the accused had such knowledge or belief that the notes which he was carrying are fake currency notes, the ingredients of Section 489-B of I.P.C. are not established by the prosecution. Though the prosecution proves the seizure of the fake currency notes from the custody or possession of the accused, but the crucial litmus test is regarding the knowledge or belief of the accused. It is condition precedent to prove that the accused has knowledge or having reason to believe that the said currency notes are forged or counterfeit and in spite of that he indulged himself in selling, buying or receiving from any other person or otherwise trafficking in or uses the said currency notes as genuine one.

7. In this background, it is worth to note a decision of the Hon'ble Supreme Court, it is reported in AIR 1979 SC PAGE 1705 between M. Mammutti Vs. State of Karnataka.

"Penal Code Section 489-B and 489-C - possession of currency notes proved. Currency notes of such nature that mere look that they would not convince anybody that they were counterfeit, presumption that accused knew that notes in possession were counterfeit cannot be drawn. No specific question put to the accused in his examination under Section 313 of Cr.P.C. to find out whether he knows that the notes in possession were counterfeit currency notes under Section 489-B and 489-Criminalnot proper".

8. In another Ruling reported in 2001 (9) SCC page 642 between Umashanker Vs. State of Chhattisgarh wherein the Hon'ble Supreme Court held that :

"Mens rea ("Knowing or having reason to believe the same to be forged or counterfeit") essential to constitute the offence under - Mens rea on the part of the accused must be proved by prosecution - Merely on the basis of evidence that the currency note given to PW by accused, then a student aged 18 years, was fake drawing a presumption that he had the requisite mens rea is not warranted underSection 4 of Evidence Act - Also, no question under Section 313 Cr.P.C. was put to the accused about the currency note being fake or counterfeit - Unwary possessors or users not to be prosecuted".

9. It is also worth to note another Ruling of this Court reported in 2004 (2) Kar.LJ 19 between State by Lashkar Police Station, Mysore Vs. M.V. Srinivasa Head Note (B) : It is noted that :

"Counterfeit currency notes - Charge of attempting to circulate and of being in possession of - Mere possession is not enough - It must be established that accused knew that notes to be forged or had reason to believe it to be so, and that he had intended to use them as genuine - Onus lies on prosecution to prove circumstances which lead to inference that accused had such knowledge and intention - This can be achieved by investigation into source or origin of notes - Omission to make such investigation, Held, is fatal to prosecution case - In absence of evidence or circumstance showing that accused had such knowledge and intention, conviction, held, is not possible".

10. In view of the above said Rulings, it is clear that it is the burden on the prosecution to establish the knowledge or belief of the accused beyond reasonable doubt. In order to establish this, the prosecution has to show that the accused was an ordinary prudent man who could distinguish between the fake and genuine currency notes. If the currency notes are seen by ordinary prudent man, one can immediately come to the conclusion that it is a fake note. In this background, this Court has to see the evidence placed before the Court by the prosecution. Though the learned Counsel has attacked the judgment of the Trial Court on various grounds. But the evidence of the prosecution witnesses merely establishes that on the date of incident the accused had gone to the Syndicate Bank at Super Market Branch, Hubli and produced 10 currency notes which are fake notes mixed with six genuine currency notes.

11. Let me now have the glance of evidence of prosecution. PW-4 - K.N. Gopalrao who is the Chief Manager of the said Bank, deposed before the Court that on that day the accused went to the Cashier to deposit the said amount. The Cashier has checked the said currency notes with the help of ultra virus machine and came to know that 10 currency notes were fake notes. Immediately, the Cashier brought the accused along with the cash amount to this witness and in fact this witness asked the accused as to from where he had brought that amount. Then the accused told the Bank Manager that he brought the said amount from the Cash Box where he was working i.e. to say from Jayashree Textiles in Hubli town. This witness also stated that he also examined the said notes, by seeing the said notes one can come to the conclusion thatthose currency notes are fake notes because they all having common serial numbers. Thereafter, he contacted his Higher Officers, thereafter he called the Police to the Bank, handed over the accused as well as the fake currency notes to the Police and the Police seized them in the presence of panch witnesses. The other witness PW-5 - Francis Pinto, who was working as Cashier in the said Bank also deposed in the same fashion, before whom the currency notes were produced, he tested the said currency notes with ultra virus machine and took the accused to the Manager - Gopalrao. None of these two witnesses in their examination in chief have stated anything about the conduct of the accused. Even after coming to know that those currency notes were fake notes, and on being explained by these two witnesses it appears the accused was not perturbed, he never made any attempts to run away from the said Bank nor he has made any attempts to destroy the currency notes. On the other hand, Police came to the Bank accused went along with Police and Police have seized the said currency notes from the accused. No sort of allegations made against any abnormal conduct of the accused by any of the witnesses.

12. The evidence of PW-7 - Hebbalappa Pujar, Security Guard, also stated that he was present when Mr. Pinto was receiving the Currency notes from the accused and the Manager has told this man to keep the accused with him not to leave him. This witness also never stated anything about any peculiar conduct of the accused.

13. PW-8 - Sanjay Shrikant, Deputy Manager, Reserve Bank of India, who has examined the said currency notes, who has given the certificate that the said currency notes are fake currency notes which are marked at Ex.P1 to P10. Looking to the above said evidence, there is no reason to disbelieve the evidence of these witnesses so far as the possession of fake currency notes, the currency notes found in possession of the accused and as well as recovery of those currency notes from the custody of the accused by the Police.

14. In support of this evidence, the evidence of the Investigating Officer - PW-9 - Irayya Mathapati, who has stated that on 22.02.2011 he received a complaint from Mr. K.N. Gopalrao, he registered a case and seized 10 fake currency notes of denomination of Rs.500/- having common serial numbers. He also arrested the accused on the same day and produced the accused before the Court. In the course of examination in chief itself he has stated the accused was working in Jayashree Textiles as Salesman in Hubli itself.

15. Looking to the above said evidence of these witnesses, there is no reason to disbelieve these witnesses. Therefore, I don't find any reasons to differ from the Trial Court so far as these factual aspects are concerned, holding that the prosecution has proved beyond reasonable doubt that the fake currency notes were recovered from the custody of the accused.

16. The pivotal point involved in this case is that, whether the accused was having any knowledge of fake currency notes or reason to believe that those currency notes are fake notes and in spite of that he made any effort to deposit them, in the Bank in order to have wrongful gain. As I have already noted above, the prosecution witnesses in their evidence or in the complaint never made any specific allegations against the accused that he was having knowledge that the notes which he was having, are all fake currency notes or he has reason to believe those currency notes are fake currency notes. The educational qualification, intelligence, understanding capacity, reading, writing knowledge of the accused also in my opinion, play an important rule in order to fasten the liability on the accused. The Court should make all endeavour based on evidence to understand the capacity of the accused to understand and distinguish the difference between genuine currency notes and fake currency notes. In this background, there must be sufficient evidences before the Court to establish this particular aspect.

17. PW-5 and PW-8 in the course of their cross- examination, admitted that even in ATM Stations there were instances where fake notes were detected. It is stated that an ordinary prudent man cannot identify the difference between the fake currency notes and genuine currency notes because the ordinary man may not be having such equipped machines. They further admitted that a person is illiterate he may not be in a position to differentiate the genuine currency note with that of fake currency note on the basis of even looking to the serial numbers on the currency notes. With this evidence on facts from the mouth of the prosecution witnesses, the prosecution has to establish that accused was a literate man and he was capable to differentiate between the fake currency notes and genuine currency notes by means of looking at the serial numbers on the currency notes. In this background, it is just and necessary to have materials on record.

18. The learned Sessions Judge while recording plea of the accused after framing of the charges on 27.08.2011 has mentioned that the charges read over and explained to accused in Hindi language known to him and accused pleaded guilty and claims to be tried. Nowhere in the records, the prosecution has produced any material to show that the accused is a literate person, who can understand Kannada language, understand the serial numbers and understand the English numericals so that it can be said that the accused had knowledge of serial numbers of those currency notes in order to fasten the guilty mind on him that knowing fully well that those currency notes having common numbers or fake currency notes, and in spite of that he has made attempts to deposit them in the Bank.

19. Amongst the above said Rulings, in one of the Rulings quoted it is observed that the knowledge or belief of the accused person gathered from the evidence of the prosecution witnesses should be put to the mouth of the accused and elicit his answer. The Court also should make all its efforts to find out the capacity of the accused in order to find that the accused was capable to distinguish the fake notes from genuine notes. The statement of the accused recorded by the learned Sessions Judge is nothing but putting the evidence elicited by the prosecution during the course of examination in chief of all the witnesses and nothing more. It is also quite important to note here that the learned Sessions Judge has not at all mentioned in the 313Cr.P.C. Statement that he has translated the said evidence in Kannada language into Hindi and after the accused understanding the said statement of the witnesses and then gave his answer. Even in the order sheet dated 06.09.2013 on which day the statement of the accused was recorded, the learned Sessions Judge has only stated that he has narrated the incriminating circumstances against the accused and accused has denied all allegations against him. But he has not stated that all those questions have been translated into Hindi and explained to the accused. This is a serious error committed by the Sessions Judge. Moreover, in 313 statement no question has been put to the accused in order to elucidate his knowledge and reasonablebelief of having possession of fake currency notes with him. In the absence of such materials, in my opinion, it cannot be said that the intention and the knowledge and as well as the reasonable belief of the accused that he was in conscious possession of the fake currency notes can be inferred on the basis of the materials on record.

20. Now, coming to the Judgment of the Trial Court, the Trial Court has come to the conclusion so far as the intention, knowledge of the accused is concerned, on the basis of imagination. At paragraph 26 the learned Sessions Judge has observed that :

"If the accused was innocent and he was in possession of those fake notes without his knowledge, then to my mind it was obligatory on his part to explain his innocence in the matter. For the reasons best known to the accused, he has kept silent while he was examined under section 313 of Cr.P.C. and he has not given any iota of explanation. His silence during the time of his statement under Section 313 of Cr.P.C. is one of the strong circumstances against him".

The above said observation by the learned Sessions Judge, in my opinion, is not correct and proper. The innocence of the accused shall be initially presumed by the Courts. On the basis of the materials on record, if the Court comes to the conclusion that the innocence of the accused is successfully destroyed by the prosecution then only it becomes obligatory on the part of the accused to open his mouth and prove his innocence. In this particular case, I have already observed, the Sessions Judge himself has not narrated any evidence against him with reference to his knowledge or reasonable belief with regard to the conscious possession of counterfeit currency notes, then the question of the accused explaining any incriminating material against him does not arise.

21. It is further observed by the learned Sessions Judge at paragraph 27 that :

"MO-1 to 10 are all of same number noted as '8MT - 084858'. There is evidence that accused was working in cloth shop at Hubli and he is a businessman. In such of his day to day business he comes to know about the genuine and fake currencies. It must be within his knowledge that each currency will have a different numbers. When he has used 10 fake notes of same number, it is seen that with all knowledge and intention he has used the fake notes as genuine one. Evidence available on record further goes to show that the accused was in the habit of putting money into the disputed account of Bhagwan Singh of Syndicate Bank, Shriramnagar Branch, Gangavati. It goes to indicate that in a slow and casual manner the accused was using the fake notes as genuine one. These are all incriminating circumstances arising out of the prosecution evidence and from such evidence it can be observed here that the accused with full knowledge and intention has used the fake notes as genuine one ".

The above said observations of the learned Sessions Judge is bereft of evidence before him. As I have already noted, none of the witnesses of the prosecution have stated that the accused is the person regularly depositing the amount before the Bank and in a slow and casual manner the accused was using the fake notes as genuine one. When none of the witnesses have stated about this, where the learned Sessions Judge has got this information, it is a mystery in the case of the prosecution. Further added to that, the common currency note numbers as I have already noted, it depends upon the capacity of the accused person. If he is literate person having knowledge of serial numbers or English numericals then only it can be said that he can distinguish fake currency notes with that of genuine currency notes. As I have noted, there is absolutely no evidence of whatsoever including the evidence of the Investigating Officer that the accused was so prudent, capable, knowledgeable and educated man who can easily identify the numerical numbers on the disputed currency notes. It is also worth to note here that, the accused does not know Kannada language and there is no material to show that he knew the English numericals, numbers, digits, etc.

22. The further observation of the Sessions Judge that the accused due to day to day business might have come to know about the genuine currency notes and fake currency notes. There is long long way to travel between, the accused might have known or must have known, the Court should be very specific, on the basis of the evidence. Whatever observations made by the learned Sessions Judge above, in my opinion, are not based on any evidence on record. The Hon'ble Supreme Court in the above said one of the decisions has also observed that in day to day business, people may come across the fake currency notes and they may receive several fake notes in the course of their business, it cannot be held that the accused is guilty.

23. One more circumstance also create doubt, the accused person has alleged to have produced these currency notes before the Bank Authorities, whether any ordinary prudent man knowing fully well that the currency notes are fake currency notes and bank authorities are experts in differentiating the fake currency notes as well as the genuine currency notes would produce those currency notes before the bank authority. It is very difficult to believe such attitude of the accused.

24. Added to the above said circumstances, it is an undisputed fact by the prosecution itself that this man was working in the Textile Shop belonging to CW-9 - Suresh Kumar S/o Giridharji Rajpurohith. It is there in the evidence of Mr. Gopalrao - PW-4 that, on the day of the incident he has not called the owner of the said Jayashree Textiles. But he further says that some body came from the said shop and told that the accused a worker in their shop, requested to release him. It is to be noted here that the said CW-9 - Suresh Kumar has not been examined before the Court by the prosecution in order to ascertain what is the education qualification of the accused and whether the accused was so intelligent man who can understand the different languages and English numericals in order to come to a definite conclusion that the accused on the basis of the common serial numbers on the fake currency notes could have identified those currency notes as fake currency notes and in spite of that he was in conscious possession of them. In the absence of such clinching evidence before the Court, in my opinion, it cannot be said that the prosecution has proved the guilt of the accused beyond reasonable doubt. The ingredients referred to above under Section 489-B of Cr.P.C. have not been satisfactorily established by the prosecution. Hence, the appeal deserves to be allowed.

25. Accordingly, the following Order is passed :

The appeal is allowed. Consequently, the Judgment of Conviction and sentence passed by the Ist Additional Sessions Court sitting at Hubli in S.C. No. 59/2011 dated 9th October 2013 is hereby set aside. As the accused said to be in judicial custody he shall be set at liberty forthwith if he is not required in any other case.

If any amount of fine is deposited by the accused, it is ordered to be refunded to the accused. It appears that along with the fake currency notes MOs 11 to 16 - genuine currency notes were also seized from the custody of the accused and the said currency notes are also ordered to be released in favour of the accused.